Vukadinovich v. Terminal 5 Venture

• Decision Date: 22 September 1993
• Docket Number: No. 91 C 8308.,91 C 8308.
• Citation: 834 F. Supp. 269
• Parties: Walter VUKADINOVICH, Plaintiff, v. TERMINAL 5 VENTURE, a/k/a T5V, Gilbane Building Company, Individually and d/b/a Terminal 5 Venture, Concrete Structures of the Midwest, Inc., Castle Construction Corporation, Havens Steel Company and Monroe Timmons Construction, Inc., Defendants. HAVENS STEEL COMPANY and Terminal 5 Venture a/k/a T5V and Gilbane Building Company, Individually and d/b/a Terminal 5 Venture, Third-Party Plaintiffs, v. DELGADO STEEL ERECTORS, INC., Third-Party Defendant.
• Court: U.S. District Court — Northern District of Illinois

834 F. Supp. 269

Walter VUKADINOVICH, Plaintiff, v. TERMINAL 5 VENTURE, a/k/a T5V, Gilbane Building Company, Individually and d/b/a Terminal 5 Venture, Concrete Structures of the Midwest, Inc., Castle Construction Corporation, Havens Steel Company and Monroe Timmons Construction, Inc., Defendants.

HAVENS STEEL COMPANY and Terminal 5 Venture a/k/a T5V and Gilbane Building Company, Individually and d/b/a Terminal 5 Venture, Third-Party Plaintiffs, v. DELGADO STEEL ERECTORS, INC., Third-Party Defendant.

No. 91 C 8308.

United States District Court, N.D. Illinois, E.D.

September 22, 1993.

Louis C. Cairo, Goldberg, Weisman and Cairo, Ltd., Chicago, IL, for plaintiff.

John Joseph Bullaro, Thomas A. Carton, Bullaro, Carton & Stone, Chicago, IL, for defendants Terminal 5 Venture aka T5V, Havens Steel Co. and Gilbane Building Co.

John Joseph Freeman, Adler, Kaplan & Begy, Chicago, IL, for defendant Concrete Structures, Inc.

Kurt C. Meihofer, Laura B. Glaser, Johnson & Bell, Ltd., Chicago, IL, for defendant Castle Const. Corp.

Harry L. Wilson, Ilene M. Korey, Clausen, Miller, Gorman, Coffrey & Witous, P.C., Chicago, IL, for third-party defendant Delgado Erectors.

MEMORANDUM OPINION AND ORDER

MAROVICH, District Judge.

Plaintiff Walter Vukadinovich ("Vukadinovich") filed suit against Defendants Terminal Five Venture ("T5V"), Gilbane Building Company ("Gilbane"), Concrete Structures of the Midwest, Inc. ("CSM"), Castle Construction Corporation ("Castle"), Havens Steel ("Havens") and Monroe Timmons Construction, Inc. ("Timmons") (collectively "Defendants") seeking to recover for injuries he suffered when he fell through a hole in a building structure at O'Hare International Airport in Chicago. Havens, T5V, and Gilbane then filed suit as third party plaintiffs against third party defendant Delgado Steel ("Delgado"). Vukadinovich brings claims under both common law negligence and The Illinois Structural Work Act, 740 ILCS 150/1-150/9 (West 1993). Defendants have collectively moved for judgment on the pleadings¹ pursuant to Fed.R.Civ.P. 12(c) alleging that the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. § 651 (1985) preempts the Illinois Structural Work Act claims. For the following reasons, we hold that the Illinois Structural Work Act claims are not preempted by OSHA because they fall within OSHA's "savings clause."

BACKGROUND

Terminal Five Venture is the construction manager for the new International Terminal at O'Hare International Airport in Chicago. Gilbane Building Company is one of five joint venture partners of the Terminal Five Venture. Havens Steel contracted with T5V to fabricate and erect steel for the International Terminal. Delgado subcontracted with T5V to erect structural steel. Vukadinovich was employed by Delgado.

T5V, Havens and other defendants were "in charge of" the work at Terminal Five pursuant to the meaning of that phrase as used within the Illinois Structural Work Act. Vukadinovich participated in coordinating the work being done and designated various work methods, maintained and checked work progress, and participated in the scheduling and inspection of the work.

On December 20, 1991 a certain concrete floor deck existed which had a hole within it. Vukadinovich was in the process of acquiring plywood for purposes of building a temporary deck to be used in the constructing process when he picked up a piece of plywood which was positioned over a hole and fell through the space. He landed approximately twenty-five feet below and suffered severe injuries.

Plaintiff alleges that Defendants:

(a) Failed to install, or cause to be installed, a safe or adequate covering over said hole;

(b) Failed to install, or cause to be installed, barricades, saw horses, guardrails or other forms of protective devices over or around said hole;

(c) Failed to install, or cause to be installed, any warning signs or warning indicators around or over said hole;

(d) Failed to warn Plaintiff of the fact that a hole existed in said concrete deck;

(e) Caused a piece of plywood to be laid over said hole in the concrete deck without putting any form of warning or other protective device on top of or around said piece of plywood to indicate that a hole existed underneath same.

Vukadinovich bases his claims on both the Illinois Structural Work Act and the common law.

DISCUSSION

A. Preemption

The Supremacy Clause of the United States Constitution allows for federal law to preempt state laws in various ways. Express preemption occurs when Congress expressly states that federal law will preempt state regulations. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Preemption can also be implied in the absence of express language if the federal regulation is so comprehensive that no state regulation can supplement it. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This type of preemption is referred to as field preemption.

In contrast, implied conflict preemption exists when the scheme of federal regulation has not completely displaced state regulation and that state regulation conflicts to a certain extent with federal law. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963). The court's "ultimate task in any preemption case is to determine whether state regulation is consistent with the structure and purpose of the statute as a whole." Gade v. National Solid Wastes Management Assn., ___ U.S. ___, ___, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992).

In order to examine the preemption argument, it is therefore essential that we examine the two acts to determine what conflicts, if any, exist. We also must delve into the purposes behind the statutes in order to ascertain the intent of Congress which is critical to our determination. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987).

1. The Illinois Structural Work Act

The Illinois Structural Work Act was first adopted in 1907 in order to protect persons working in certain types of construction projects. See Simmons v. Union Electric Company, 104 Ill.2d 444, 85 Ill.Dec. 347, 473 N.E.2d 946 (1984). The Act applies to various work activities "in or about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures." Id. The Act provides in relevant part:

That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erecting, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated, so as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.

740 ILCS 150/1 (West 1993). The Illinois Supreme Court has stated that the purpose of the Illinois Structural Work Act is to "prevent accidents before they occur; failing that, to compensate those injured by extra-hazardous but socially useful activities." Simmons, 85 Ill.Dec. at 354, 473 N.E.2d at 953, citing Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, 302 N.E.2d 64 (App.Ct.1973).

The Structural Work Act claims vary from the common law negligence claims in that judicial interpretation of the Act excludes the injured party's own negligence from the negligence equation. Stifle v. Marathon Petroleum Co., 876 F.2d 552 (7th Cir. 1989). This is in keeping with the Act's purpose which is to afford an employee a safe and healthy workplace and to give complete relief to an injured worker. Id. Courts also interpret the language of "having charge of" broadly in order to include any owner, contractor, subcontractor, foreman or one may actually be in charge of work at the site in order to insure compliance with the Act. Schroeder v. C.F. Braun & Co., 502 F.2d 235 (7th Cir.1974).

2. Occupational Health & Safety Act

Traditionally, the states had occupied the field of safe and healthy working environments. However, through OSHA, Congress attempted to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b). Pursuant to OSHA, mandatory occupational safety and health standards were established which applied to all businesses affecting interstate commerce. 29 U.S.C. § 651(b)(3). Congress, however, expressly preserved two areas from federal preemption. Section 18(a) further provides:

that the Act does not "prevent any State agency or court from asserting jurisdiction under state law over any occupational safety or health issue with respect to which no federal standard is in effect."

Congress further provided that states could preempt federal legislation entirely. Section 18(b) provides:

Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a federal standard has been promulgated by the Secretary under OSHA shall submit a State plan for the development of such standards and their enforcement.

It is the effect of these sections which is at the crux of the dispute before us. Illinois has not received the Secretary's approval for the Illinois Structural Work Act and therefore, Defendants assert that since that Act covers the same issues of health and safety that OSHA covers, Plaintiff's claims under that Act are unenforceable.

B. Analysis

Defendants assert that the Illinois Structural Work Act regulates many, if not most, of the areas that...